Secretive surveillance court rejects plea for transparency

In an opinion issued late Thursday, a judge for the secretive Foreign …

In an opinion issued late Thursday, a judge for the secretive Foreign Intelligence Surveillance Court denied a motion by the American Civil Liberties Union, which had sought permission to participate in secret proceedings under the controversial FISA Amendments Act signed into law by President Bush last month.

Pursuant to the new law, the FISC is empowered to review the targeting and minimization procedures employed by intelligence agencies carrying out warrant-less surveillance of foreign targets. Almost immediately upon the law's passage, the ACLU filed a motion making two requests of the Court: First, it asked that the government release unclassified, public versions of pleadings before the FISC and significant legal opinions issued by the court. Second, it had asked for permission to submit briefs and participate in hearings implicating the "scope, meaning, and constitutionality" of the new statute. Administration lawyers had strenuously urged the court to reject both requests.

Judge Mary McLaughlin did just that yesterday in an 11-page opinion, summarily denying the civil liberties group's motion. After considering and rejecting the possibility that there might exist any common law or First Amendment right to the release of FISC records, McLaughlin declined to authorize such release as a matter of discretion, concluding that such a move "would create risks to national security that far outweigh any potential benefit to be gained by providing the ACLU with access to the requested records."

As for the request to participate in hearings, the judge noted that nothing in the provision of the FAA establishing limited judicial review of targeting and minimization procedures suggested that Congress had intended for third parties to be involved. By contrast, she wrote, other provisions—such as the one establishing a process for telecoms to appeal surveillance orders—explicitly allowed for such third-party participation, implying that in the absence of such explicit allowance, the hearings were to be ex parte affairs.

McLaughlin also appeared to accept the government's argument that the ACLU would be unable to provide "meaningful input" in such hearings without access to classified details of targeting and minimization rules. Moreover, she argued, because hearings would be limited to making narrow determinations of whether these procedures met statutory requirement, it was unlikely that the Court would need to "reach beyond the Government's procedures and conduct a facial review of the constitutionality of the statute."

ACLU attorney Jameel Jaffer called the ruling "disappointing" in a statement today. The court, argued Jaffer, "should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."